9911796707
TMI Blog1989 (6) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Allahabad :- (1) Whether in the appeal the Hon ble Tribunal could convert the proved contravention from sub-section (1) to sub-section (2) of Section 8 of the Gold (Control) Act? (2) Whether in the light of Section 81A of the Gold (Control) Act, it could be concluded that there is no impediment for converting the established breach from one sub-section to another sub-section of the same Section? (3) Whether it is correct for the Hon ble Tribunal to presume the breach to be established even while concluding that the breach is not under the specific sub-section which was alleged but under another sub-section, even if it be of the same section? (4) Whether the conclusion of the Hon ble Tribunal that the premises of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e business premises of the appellant at Agra on the strength of a search warrant and found the appellant/applicant engaged in making, preparing, manufacturing, melting and refining primary gold at various stages alongwith some office employees. Necessary equipment was also found namely two glass flasks kept on coal stove which contained gold in acid. Two glass flasks were kept near furnace containing gold and water and 3 crucibles with melted gold. Gold in the flasks and crucibles were got dried. Some primary gold was also recovered from inner room. The entire quantity of gold weighing 491.500 gms. recovered was seized besides two account books and some loose paper containing entries pertaining to melting and refining of primary gold, metal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above material show cause notice calling upon the appellant/applicant to show as to why the seized primary gold weighing 491.500 gms. recovered from his business premises be not confiscated and penalty be not imposed was issued. In the show cause notice contravention of the provisions of Sections 8(1), 11 and 17 of the Gold (Control) Act was alleged. On adjudication, the Collector of Central Excise, Kanpur, held the appellant/applicant guilty for contravention of the aforesaid provisions of the Gold (Control) Act. He, therefore, ordered for the absolute confiscation of the seized primary gold weighing 491.500 gms. under Section 71 of the Gold (Control) Act and imposed a personal penalty of Rs. 1 lakh upon him under Section 74 ibid. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the GS.13 registers of the said two certified goldsmiths should have been believed by the adjudicating authority since GS.13 register of the said two certified goldsmiths is a statutory record and is, therefore, evidence per se of its contents and need not be proved by the production of persons who have made the entries or to whom the entries relate. The question, therefore, before the Tribunal was whether the entries made in the GS.13 register of the two certified goldsmiths who were alleged to be the owner of the most of the primary gold recovered from the appellant/applicant should have been believed as correct or not. The Tribunal gave its findings agreeing with the adjudicating authority that the gold belonged to the appellant/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention, therefore, was considered to be an afterthought. (7) In his statement recorded on the spot the appellant admitted that he was carrying on the trade of melting and refining of the gold in the premises which was raided and from where the primary gold was recovered and seized without any licence under the law and that he was neither a certified goldsmith nor a licensed gold dealer and out of the gold recovered and seized from his refinery 3 pcs. of gold weighing 18.200 gms. were his own and the rest belonged to the customers received for refining but he could not tell the names of the customers except in respect of gold weighing 99.700 gms. alleged to have been obtained from refining of 120 gms. of primary gold received from younger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned. No presumption about their correctness is attached under any section or rule. 6. In view of the aforesaid reasons given by the Tribunal gold recovered from the premises of the appellant/applicant was not held to belong to the two certified goldsmiths as claimed by the appellant. The finding of the Tribunal is, therefore, entirely based on the appreciation of evidence on record. The question posed by the learned Advocate for the applicant regarding admission of the photo copies of the GS. 13 register maintained by the goldsmiths and presuming the entries made therein to be correct is essentially a question of appreciation of evidence in conjunction with the other evidence on record. The question posed by the application, therefore, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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